An appeal in which the appellant was convicted and sentenced to death by a Thika court for attempted robbery with violence, but his files disappeared mysteriously wants to be acquitted by the high court.
Prior to the appeal process, both the court and police files of Danson Maina Muchoki mysteriously disappeared from custody in what Kiambu High Court Judge, Lady Justice Christine Meoli faulted, saying “it cannot be sheer coincidence”
In her ruling on Monday, Justice Meoli said the appeal was one of the several that were affected by the mysterious disappearance of court records and therefore referred the case to the probation department for pre-sentencing report to be furnished to the court on November 11th 2019.
Lady Justice Meoli regretted the loss of the file, including the police file. Even the current one had at one time disappeared but was traced.
She noted, the court stated inter alia in its ruling that “it is a well settled principle that an acquittal does not automatically follow when the court records are untreacable.The case before us clearly manifests that there was an orchestrated plan to have the files disappear.”
Through various miscellaneous applications, the appellant had sought to withdraw, but later when he was produced in court to confirm his intention, which primarily sought a review of the ruling, he changed his mind.
“My father died so I discontinued the pursuit of bond terms (review). I do not want to pursue application for reduction of bail terms granted by the court. I did not want bond, I want to be released by the High Court. I have made written submissions which I place before court”
The DPP’s response was to ask the court to order for an enquiry into the disappearance of the original trial record. I have looked into the appellant’s submissions and realized that he is categorical that he is not interested in being released on bond but seeks an acquittal as he was not privy to the circumstances in which the trial file disappeared. He emphasized his long incarceration and delay in the hearing of the appeal, Meoli noted.
After considering the record before hand, she noted that an acquittal is ordered pursuant to a finding of no fault.
Muchoki was convicted in November 2003.Copy of the charge sheet on record in respect of Cr.Case No 2417/03 stated that the appellant was charged jointly with 2 others with the offence of attempted robbery with violence contrary to section 297(2) of the penal code. In that on 19th March 2003 at Mbombo village Maragua district, while armed with dangerous weapons namely a toy pistol and other crude weapons, they attempted to rob Henry Karanja Njuguna of a motor vehicle registration no. KAP 2018Y Toyota Hiace Matatu valued at 1,200,000 and or immediately before or after the time of the attempt threatened to use actual violence against the complainant.
The offence no longer attracts an automatic death sentence in light of the recent decision of the supreme court of Kenya in Francis Karioko Muruatetu and others V R (2017) e KLR and various pronouncements by the high court as the appropriateness of the sentence.
The court directed that the appellant prepares and appear to raise mitigation of the proposed resentencing. Further, the DPP will if possible avail copies to any records of past convictions against the appellant.
By Lydia Shiloya
